Cheaper Than Chimpanzees

It was World War II. Soldiers were being deployed to areas where diseases hampered military efforts when soldiers became infected, notably tropical diseases such as malaria. Physicians were working to find a cure or treatment, but there was one small difficulty: experiments were needed on human subjects to test various drugs. But it was only a small difficulty. There were, after all, a host of prisoners on which the treatments could be tested, and those prisoners were conveniently being housed in a highly controlled environment that would aid the scientific studies.

The above paragraph could easily describe the work of Dr. Klaus Schilling, who performed medical experiments on roughly 1000 prisoners at the Dachau concentration camp. He was working to find a treatment for malaria that was infecting German soldiers fighting in North Africa. After the war concluded, he was tried as part of the so-called “Dachau Trials” in 1946, convicted, and executed by hanging because of his experiments.

But the paragraph could just as easily describe the work done at the Stateville Penitentiary in Illinois during the 1940’s. Physicians from the Department of Medicine at the University of Chicago conducted experiments on more than 400 prisoners incarcerated at the prison. They were testing antimalarial drugs to evaluate their use in the Pacific by American soldiers fighting the Japanese.

Indeed, the similarity between the two courses of research was not lost on those defending themselves at the Nuremberg “Doctors’ Trial,” held before U.S. military courts. Defense attorneys presented the argument that there was no meaningful difference between what the State of Illinois had done at Stateville and what the Nazis had done at Dachau, much the same way as I presented the scenarios above. But the comparison is, in fact, an unfair one, and people instinctively recognize that there is something not quite right about it. The Nazis conducted their experiments on people whose imprisonment was seen as unjustified and without their consent, while the experiments at Stateville were conducted on prisoner volunteers who had been convicted of crimes in a manner that was more morally satisfying.

But the issue of performing medical research on prisoners is not a simple one. When Columbia University last week needed to suspend research at a brain-imaging lab because of the injection of chemicals having unsafe impurity levels into subjects, concerns were expressed because the subjects were suffering from mental illnesses. It was noted that the regulations governing federally funded research include special provisions for research conducted on women, children, and prisoners, but have no such special provisions for research conducted on the mentally ill. And one still hears vivisectionists often express the view that research currently conducted on mammals would be more fairly conducted on prisoners instead.

Those federal regulations (45 C.F.R., Part 46) have their origin in the very argument that was presented at the Doctors’ Trial at Nuremberg, which led to the Nuremberg Code. The Nuremberg Code sets forth a set of ethical principles to be applied to human experimentation, embracing particularly the concepts of informed consent and the absence of coercion, but also recognizing the need for the research to be beneficial to society and conducted by trained scientists.

The creation of the Nuremberg Code had an ironic effect in the United States. Rather than follow its directives, the higher moral position of the United States at Nuremberg created an environment of license in the United States in which the guidelines of the Nuremberg Code were often ignored. In a huge postwar expansion of experimentation on prisoners in the United States, numerous gruesome studies were performed. The famous Sing Sing “blood cleaning” experiment in which the blood of an 8-year-old girl was circulated through the body of a volunteer prisoner for 24 hours in an effort to cleanse her of cancer. The injection of live cancer cells into more than 100 inmates in the prisons of Ohio. Holmesburg Prison in Philadelphia became a haven for studying the effects of everything from detergents to chemical warfare agents.

Prisoners were convenient subjects for human experimentation and they were, as summarized by Jessica Mitford in a 1973 article, “cheaper than chimpanzees.” It would be only a short time afterwards that the essential provisions of the Nuremberg Code would finally be codified as a part of United States law, changing significantly the role of prisoners in research. But has it been enough? The Institute of Medicine of the highly prestigious National Academies of the United States released a report in 2007 in which they evaluated the ethics of that legislation. Their answer to the question whether the legislation has achieved an appropriate balance between scientific knowledge and prisoner vulnerability was “an emphatic ‘no.’ ” They recommended a number of changes in the system of ethics that governs research conducted on prisoners, notably including the use of more modern ethical constructs. In reaching their conclusions, they considered the realities of prison life and the implicit coercion that exists in the context of their knowledge of medical ethics in a thoughtful and thorough way.

At this time, those recommendations have not yet been implemented by Congress. It may be true that prisoners are no longer cheap substitutes for chimpanzees. But when those among us who have the greatest knowledge about medical ethics tell us that the protections that do exist are “emphatically” insufficient, it is time to pay attention and rethink them.

The author, Patrick M. Boucher, is a patent attorney living near Denver, Colorado and working at Marsh Fischmann & Breyfogle. He holds a Ph.D. in physics as well as a J.D. He is an active member of the American Physical Society, and is admitted to practice law in the states of Colorado and New York, as well as to practice before the U.S. Patent and Trademark Office. He is also a member of the Authors Guild and of the Colorado Authors League.